The rule of law as a law of standards

Georgetown Law Journal

Volumn 99, Issue 5, 2011, Pages 1289-1299

  Greene, Jamal ^a  

^a The Earth Institute at Columbia University   (United States)

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EID: 80052077355     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (51)

1. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1175 (1989).
2. Kathleen M. Sullivan, The Supreme Court 1991 Term-Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 121 (1992).
3. See, e.g., James E. Fleming, "There Is Only One Equal Protection Clause": An Appreciation of Justice Stevens's Equal Protection Jurisprudence, 74 FORDHAM L. REV. 2301, 2301 ("With [his] words [in Craig], he served notice that . . . he was to be . . . a 'justice of standards' as distinguished from a 'justice of rules.'" (quoting Sullivan, supra note 5)). Sullivan refers to Justice Stevens as Justice Scalia's "standard- bearing antagonist." Sullivan, supra note 5, at 88.
4. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 800 (2007) (Stevens, J., dissenting) ("The Court's misuse of the three-tiered approach to Equal Protection analysis merely reconfirms my own view that there is only one such Clause in the Constitution."); City of Cleburne v.
5. City of Cleburne v Cleburne Living Ctr., 473 U.S. 432, 451 (1985) (Stevens, J., concurring) ("I have never been persuaded that these so-called [tiers-of-scrutiny] 'standards' adequately explain the decisional process.").
6. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 126-27 (2000) (Stevens, J., concurring in part and dissenting in part) (praising the Court for refusing to adopt a per se rule governing the permissibility of detaining someone who flees at the sight of a police car);
7. He joined Justice Scalia's majority opinion in Crawford v. Washington, which established a bright-line rule that a criminal defendant must be given the opportunity to test all testimonial statements used against him through confrontation. 541 U.S. 36, 68 (2004). (Stevens, J., concurring) (advocating a totality of the circumstances approach in political gerrymandering challenges). One evident exception to Justice Stevens's general preference for standards over rules is his Sixth Amendment jurisprudence.
8. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)
9. see also United States v. Booker, 543 U.S. 220, 243-44 (2005) (applying Apprendi's rule to the federal sentencing guidelines)
10. Blakely v. Washington, 542 U.S. 296, 299-301 (2004) (joining Justice Scalia's majority opinion, which applied Apprendi's rule to a state sentencing guidelines scheme). The apparent inconsistency might be explained by arguing-as is fitting, contextually- that constitutional provisions whose structure is more rule-like call for more a rule-based doctrine. That explanation will in some cases be question-begging, but the distinction is most defensible in those cases-involving equal protection and substantive due process-in which Justice Stevens has been most consistently opposed to rules. If any constitutional provisions are meet for a standards-based jurisprudence, they are the exceptionally broad Due Process and Equal Protection Clauses.
11. See McDonald 130 S. Ct. at 3100 n.24 (Stevens J. dissenting) (arguing that his approach to the Due Process Clause avoids "a rigid context-independent definition of a constitutional guarantee that was deliberately framed in open-ended terms")
12. see also ROBERT ALEXY, ATHEORY OF CONSTITUTIONAL RIGHTS 57 (Julian Rivers trans., 2002) (distinguishing between rules, which "insist that one does exactly as required" unless impossible, and principles, which "require that something be realized to the greatest extent legally and factually possible" and which "lack the resources to determine their own extent in the light of competing principles and what is factually possible" (emphasis added)).
13. VICKI C. JACKSON, CONSTITUTIONAL ENGAGEMENT IN A TRANSNATIONAL ERA 60 (2010).
14. See Alec Stone Sweet & Jud Mathews, All Things in Proportion?: American Rights Doctrine and the Problem of Balancing, 60 EMORY L.J. (forthcoming 2011) (manuscript at 7), available at http://ssrn.com/abstract= 1569351 ("No important claim will ever be rejected at this stage.").
15. See Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 COLUM. J. TRANSNAT'L L. 72, 75 (2008).
16. See, e.g., Dieter Grimm, Proportionality in Canadian and German Constitutional Jurisprudence, 57 U. TORONTO L.J. 383, 384 (2007) ("[I]n Canada, most laws that fail to meet the [proportionality] test do so in the second step, . . . whereas in Germany, the third step has become the most decisive part of the proportionality test.").
17. See DAVID M. BEATTY, THE ULTIMATE RULE OF LAW 160 (2004) ("In all areas of government regulation, no matter the nature of the right or freedom that is alleged to have been violated, and regardless of the personal characteristics of those bringing the case, . . . the test is always the same.");
18. See, e.g., Irwin Toy Ltd. v. Quebec (A.G.), [1989] 1 S.C.R. 927, 994, 999-1000 (Can.) (deferring to the government's conclusion that it had a "reasonable basis" for concluding that its chosen means minimally impaired the claimed right at issue, where the Court considered infringement of the right to be insubstantial);
19. Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism, 107 MICH. L. REV. 391, 418 (2008) (noting that the German and South African constitutional courts, as well as the European Court of Human Rights, vary the stringency of their proportionality tests with the significance of the right).
20. In referring to intermediate scrutiny, I refer to the vast salmagundi of doctrinal tests that fall between the rational basis standard of Williamson v. Lee Optical, Inc., 348 U.S. 483, 487-88 (1955), and the strict scrutiny test specified in cases involving governmental racial discrimination
21. e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). I do not mean the specific intermediate scrutiny formulation used in sex discrimination cases since Craig.
22. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). I do not mean the specific intermediate scrutiny formulation used in sex discrimination cases since Craig.
23. Moshe Cohen-Eliya & Iddo Porat, The Hidden Foreign Law Debate in Heller: The Proportionality Approach in American Constitutional Law, 46 SAN DIEGO L. REV. 367, 399 (2009) (arguing that proportionality analysis is incompatible with American skepticism of judges).
24. Justice Stevens has not to my knowledge offered any explicit endorsement of proportionality analysis. Justice Breyer has referred approvingly to "proportionality" in ways that make clear his familiarity with the transnational discourse on the subject. See District of Columbia v. Heller, 554 U.S. 570, 689-90 (2008) (Breyer, J., dissenting)
25. STEPHEN BREYER, MAKING OUR DEMOCRACY WORK: A JUDGE'S VIEW 163-64 (2010).
26. But see Richard A. Posner, Constitutional Law from a Pragmatic Perspective, 55 U. TORONTO L.J. 299, 301 (2005) (contesting Beatty's claim of the universality of proportionality).
27. See Sujit Choudhry, So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis Under the Canadian Charter's Section 1, 34 SUP. CT. L. REV. (2d) 501, 502 (2006) ("The citation of Oakes by courts in Antigua and Barbuda, Australia, Fiji, Hong Kong, Ireland, Israel, Jamaica, Namibia, South Africa, the United Kingdom, Vanuatu and Zimbabwe has made Oakes one of the central models for rights-based constitutional adjudication . . . ." (footnotes omitted)).
28. Still, as Donald Kommers writes, in contrast to the United States "[b]ecause rights in the Basic Law are circumscribed by duties and are often limited by objectives and values specified in the constitutional text, the Constitutional Court receives considerable guidance in determining the legitimacy of a statepurpose." DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 46 (2d ed. 1997).
29. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11, § 1 (U.K.).
30. overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
31. See Romer v. Evans, 517 U.S. 620, 634 (1996) ("'[I]f the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.'" (alteration in original)
32. (quoting Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973)));
33. Mathews v. Lucas, 427 U.S. 495, 520 n.3 (1976) (Stevens, J., dissenting) ("[P]ure discrimination is most certainly not a 'legitimate purpose' for our Federal Government . . . .").
34. Cf. Michael Stokes Paulsen, Counting Heads on RFRA, 14 CONST. COMMENT. 7, 17 (1997) ("Stevens . . . is implacably hostile to religion, in a way that seems to go beyond jurisprudence.").
35. See City of Boerne v. Flores, 521 U.S. 507, 515-16 (1997).
36. See Metro Broad., Inc. v. FCC, 497 U.S. 547, 601-02 (1990) (Stevens, J., concurring) (endorsing the Court's "focus on the future benefit, rather than the remedial justification" of government decisions involving racial classifications)
37. overruled by Constructors, Inc. v. Pena, 515 U.S. 200 (1995);
38. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 511 (1989) (Stevens, J., concurring in part and concurring in the judgment) ("I believe the Constitution requires us to evaluate our policy decisions-including those that govern the relationships among different racial and ethnic groups-primarily by studying their probable impact on the future.");
39. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 313 (1986) (Stevens, J., dissenting) ("Rather than analyzing a case of this kind by asking whether minority teachers have some sort of special entitlement to jobs as a remedy for sins that were committed in the past, I believe that we should first ask whether the Board's action advances the public interest in educating children for the future.").
40. See Christopher L. Eisgruber, Justice Stevens, Religious Freedom, and the Value of Equal Membership, 74 FORDHAM L. REV. 2177, 2184 (2006).
41. McDonald v. City of Chicago, 130 S. Ct. 3020, 3101 (2010) (Stevens, J., dissenting) (citations omitted).
42. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 452 (1985) (Stevens, J., concurring) ("[T]he word 'rational'-for me at least-includes elements of legitimacy and neutrality that must always characterize the performance of the sovereign's duty to govern impartially.").
43. R. v. Edwards Books, [1986] 2 S.C.R. 713, 772 (Can.).
44. McDonald v. City of Chicago, 130 S. Ct. 3020, 3101 (2010) (Stevens, J., dissenting).
45. (quoting United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938)).
46. See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 949 (1987).
47. Moshe Cohen-Eliya & Iddo Porat, American Balancing and German Proportionality: The Historical Origins, 8 INT'L J. CONST. L. 263, 275 (2010).
48. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 981 (1992) (Scalia, J., concurring in part and dissenting in part).
49. McDonald v. City of Chicago, 130 S. Ct. 3020, 3026 (2010) (plurality opinion).
50. See District of Columbia v. Heller, 554 U.S. 570, 634-35 (2008).
51. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1067 (1992) (Stevens, J., dissenting).